Northern Illinois Gas Company, Plaintiff-appellant, v. United States, Defendant-appellee.the L.e. Myers Co., Plaintiff-appellant, v. the United States, Defendant-appellee, 833 F.2d 1582 (Fed. Cir. 1987)

Northern Illinois Gas Company ("NI-Gas") and The L.E. Myers Co. ("Myers") appeal from separate judgments rendered by Judge Yock of the United States Claims Court.¹  Each judgment upheld the classification by the Internal Revenue Service of certain utility trucks owned by appellants as "truck trailer combinations" within the meaning of the federal highway use tax of the Internal Revenue Code, 26 U.S.C. §§ 4481-84 (1982), which provides:

A tax is hereby imposed on the use of any highway motor vehicle which (together with the semitrailers and trailers customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle) has a taxable gross weight of more than 26,000 pounds....

26 U.S.C. § 4481(a) (1982) (emphasis added). In issue is a 1976 revenue ruling which states:

(B) A utility truck equipped with a pintle hook or similar coupling device suitable for towing a trailer with two or more axles, or a one-axled trailer with a gross vehicle weight of 6,000 pounds or more is a truck "equipped for use in combinations" and therefore is within the truck-trailer combination category of the use tax schedule.

Rev.Rul. 76-294, 1976-2 C.B. 364.

All substantive issues raised by appellants on the validity of Rev.Rul. 76-294 were decided in Minnesota Power and Light Co. v. United States, 782 F.2d 167 (Fed. Cir. 1986).²  In particular, this court held that the classification of utility trucks on the basis of the design capability of the trucks, rather than on the basis of actual use with heavy-duty trailers, was a reasonable interpretation of the statutory highway use tax. Further, it was held therein that Rev.Rul. 76-294 was an interpretation of a valid regulation. Id. at 169. Finally, it was held that Rev.Rul. 76-294, if it were a change in interpretation, could be applied retroactively. Id. at 173.

Appellants assert correctly that in Minnesota Power this court did not specifically address the issue of whether the Service was required to promulgate Rev.Rul. 76-294 in accordance with the notice and comment procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1982). That issue turns, however, on whether Rev.Rul. 76-294 is a legislative or interpretative ruling. Because Minnesota Power held that Rev.Rul. 76-294 is an interpretation of a regulation which was properly promulgated, that precedent controls the APA issue as well. In any event, we agree with Judge Yock's reasons for holding that it was an interpretative, not legislative, ruling.

In addition, with respect to NI-Gas, that party litigated and lost the APA issue in Northern Illinois Gas Co. v. United States, 554 F. Supp. 371 (N.D. Ill. 1983), aff'd, 743 F.2d 539 (7th Cir. 1984), cert. denied, 472 U.S. 1027, 105 S. Ct. 3501, 87 L. Ed. 2d 632 (1985). Judge Yock held NI-Gas was collaterally estopped by the judgment of the Seventh Circuit from relitigating the issue in the Claims Court. Northern Illinois Gas Co. v. United States, 12 Cl.Ct. 84, 86-88 (1987). We agree.³ 

We have considered all of the issues raised by the appellants and are unpersuaded of error in Judge Yock's decisions on any of those issues. Accordingly, because we agree with his analysis, we affirm on the basis of his opinions.⁴ 

AFFIRMED.